Biden’s California Monuments Fuel Antiquities Act Legal Fights

President Joe Biden’s designation of two national monuments in California this week will further divide western states and policymakers embroiled in legal and political fights over White House power to unilaterally block mining, oil and gas drilling, and other development on federal lands.

Biden on Jan. 7 used the Antiquities Act to create the 624,000-acre Chuckwalla National Monument in southern California and the 224,000-acre Sattitla Highlands National Monument in northern California. Both aim to protect biologically diverse and historically significant land sacred to tribes.

The designations, which California’s congressional delegation supports, were among Biden’s final moves to conserve federal land in the face of efforts led by Utah and many Republicans from western states to halt presidential use of the act to protect federal land from development. President-elect Donald Trump has pledged to abolish or shrink many national monuments.

The new monuments “will add energy and incentive to sort of tackle the Antiquities Act when they can,” said Jamie Skillen, a professor at Calvin University in Michigan who studies federal land policy.

“As a political issue, it’s going to provide a lot of energy for Republicans and the states’ rights movement, to give congressional delegations greater say,” he said.

With the president-elect seeking to undo many of Biden’s conservation measures, “the incoming Trump administration will continue to split and divide the US,” said Andrew Gulliford, an environmental studies professor at Fort Lewis College in Colorado who has studied the political and legal battles surrounding monuments.

“Backlash against the Antiquities Act will result in even more political chaos because there are states and state legislators that support it and there are states that want to abolish it,” he said.

Circumventing Congress

Already, those aligned with Utah’s efforts to abolish monuments are calling Chuckwalla and Sattitla Highlands illegal.

Biden used the Antiquities Act to circumvent Congress to protect federal land that should only be protected by lawmakers, “not by the whims of a lame-duck president who no longer has to answer to the electorate for his actions,” said Randall Jeffs, partner at Jeffs & Jeffs PC, in Provo, Utah.

Jeffs is local counsel for the Separation of Powers Clinic at George Mason University, which argues that Congress authorized only narrow use of the act.

Jeffs said the Antiquities Act gives presidents the power to protect only small parcels of land around historical objects, and sprawling monuments violate the Antiquities Act—a position other legal experts say runs against more than a century of legal precedent.

The Supreme Court ruled in 1920 that former President Theodore Roosevelt had the right to use the Antiquities Act to protect 800,000 acres of the Grand Canyon as a national monument—land that later became the national park.

“I think any lawful use of the Antiquities Act is going to be controversial with those interests who are opposed to the use of the law to designate national monuments,” said Susan Jane Brown, chief legal counsel at environmental law firm Silvix Resources in Oregon.

“In my view, President Biden is doing exactly what the Antiquities Act envisions,” she said.

Jeffs’ position may be tested soon when the US Court of Appeals for the Tenth Circuit rules in Garfield County v. Biden, a case filed by Utah and two Utah counties challenging Biden’s use of the Antiquities Act to re-establish Utah’s Bears Ears and Grand Staircase-Escalante national monuments.

Trump shrank those monuments, which together are about the size of Connecticut, in 2017, and Biden expanded them to their original size in 2021. Utah argues the monuments are illegally large, but the US District Court for the District of Utah ruled that the monuments do not have judicial review under the Antiquities Act.

Given the Supreme Court’s precedent, the fate of national monuments may be more of a political issue than a legal one.

“It’s certainly within Congress’ authority to revisit the act to claw back some or all of the authority Congress in 1906 gave the president,” Brown said. “Are the two California monuments fuel for that fire? Sure.”